ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS (2011)

ALIYU IBRAHIM GEBI V. ALHAJI GARBA DAHIRU & ORS

(2011)LCN/4778(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of August, 2011

CA/J/EP/HR/127/2011

RATIO

RESPONDENT’S BRIEF OF ARGUMENT: TIME FRAME WITHIN WHICH A RESPONDENT IS EXPECTED TO FILE HIS BRIEF OF ARGUMENT AND POSITION OF THE LAW WHERE THE RESPONDENT FAILS TO FILE HIS BRIEF OF ARGUMENT

It is a well settled principle, that under the Election Tribunal and Court Practice Directions, 2011, the Respondents were indeed required to file in the court their brief of argument within 5 day of service of the Appellant’s brief. See paragraph 12 of the Practice Directions, 2011 thus: “12. The Respondent shall file in the court his own Brief of Argument within 5 days of service of the Appellant’s brief. Paragraphs 11 (a) to (b) above shall apply mutandis to the Respondent’s Brief of Argument.” Most regrettably, the Practice Directions 2011 (supra) is silent regarding the likely consequence of a respondent’s failure to file a brief. Thus, the provisions of the Court of Appeal Rules, 2011 have to be resorted to. It is instructive, that by virtue of the provision of order 18 Rule 10 of the Court of Appeal Rules, 2011, where, as in the instant case, a respondent fails to file the brief thereof, he will not be of allowed to canvass an oral argument of the hearing of the Appeal. For the avoidance of doubt, it must be reiterated that the fact that the 1st – 3rd Respondents have not filed the brief thereof, not withstanding. As it is a trite and well established cardinal principle, that the Appellant has a duty to establish his case on the balance of probability, and not on the weakness of the defence. That is the reality of the position under the Nigerian adversarial judicial system. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

GROUNDS OF APPEAL: WHETHER ISSUES RAISED OR FORMULATED IN A BRIEF OF ARGUMENT MUST BE DETERMINED UPON THE BASIS OF COMPETENT GROUNDS OF APPEAL CHALLENGING THE DECISION APPEALED AGAINST

…it’s indeed a trite and well settled principle, that issues raised or formulated in a brief of argument must be determined upon the basis of competent grounds of appeal challenging the decision appealed against. Thus, neither a party to the appeal, nor the court itself is allowed to raise any issue which is not related to, or arises from a ground of appeal. See CSS BOOKSHOP LTD. V. RTM CRS (2006) 11 NWLR (pt. 991) 530; ONIAH V. ONYIA (1989) 1 NWLR (pt. 99) 514: NWOSU V. UDEAJA (1990) 1 NWLR (pt 125) 188; MARK V. EKE (2004) 5 NWLR (pt 865) 54: OKOREAFFIA V. AGWU (2008) 12 NWLR (pt 1100) 165 at 191 paragraphs C – D. Most particularly in the case of OKOROAFFIA V. AGWU (supra), this court was recorded to have apply held, inter alia, that – Arguments canvassed in brief of argument must be predicted on, or traceable to the issue for determination in the appeal, as the grounds of appeal from which such issues for determination were formulated. Consequently, any issue which does not arise from the ground of appeal is irrelevant to the appeal, incompetent, and therefore liable to be struck out by the court. Per Saulawa, JCA at 191, paragraphs E-F. See also IDIKA V. ERISI (1988) 2 NWLR (pt. 78) 563; NKADO V. OBIANO (1997) 5 NWLR (pt 503) 31; ANIMA SHAUN V. UCH (1996) 10 NWLR (Pt 476) 65: KARI V. GANARAM (1997) 2 NWLR (pt 488) 380; DADA V. DOSUNMU (2006) 18 NWLR (pt 1010) 134: FRN V. OBEGOLU (2006) 18 (pt 1010) 188. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

APPLICATION FOR ISSUANCE OF PRE-HEARING SESSION NOTICE: THE MODE BY WHICH AN APPLICATION FOR ISSUANCE OF PRE-HEARING SESSION NOTICE IS TO BE MADE

In the instant case, it’s not at all in dispute, that the actual mode by which the ‘application’ for the issuance of a pre-hearing session notice has not been provided for under the First Schedule to the Electoral Act 2010 (Supra). However, the formats for both the HEARING NOTICE FOR PRE-HEARING SESSION AND PRE-HEARING INFORMATION SHEET referred to under paragraph 18 (1) & (2) (Supra) have been provided for as forms TF 007 and TF 008. Analogically, the requirement for an application under paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra), could be likened to that under the provisions of order 23 of the High Court (Civil Procedure) Rules, 1988 regarding the undefended list procedure which provides, inter alia, thus: 1. Whenever application is made to a court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and is stating that, in the deponent’s belief, there is no defence there to, the court shall, if satisfied that there are good grounds for believing that there is no defence there to, enter the suit for hearing in what be called the undefended list, and mark the writ of summons accordingly, and enter there on a date for hearing suitable to the circumstances of the particular case. It is trite that, the above provision has been a subject of various interpretations by both the Court of Appeal and Supreme Court alike. In one of such decisions, it was held by this Court that – By the meaning of application (Supra) it appears the intendment of the provisions of order 23 and particularly the use of the word application is that a special request must be made first before a writ of Summons is placed on the undefended list. The substratum of the provision is the application. Once there is all application, however made either by a motion exparte under order 8 or by the filling of form one under order 5, the legal requirement is fulfilled once an application is made. In the case of OKONOFUA VINCENT OMOJAHE V. UWESU UMORU 42 ors (1999) 5 SCNJ P. 280 at 287, the Supreme Court held that Statutes are construed to promote the general Purpose of the legislature. Judges ought not to go by the letter of the Statute but also by the spirit of the enactment. See F. O. OGBAEGBE V. FIRST BANK OF NIGERIA PLC APPEAL NO CA/PH/230/2001, date at 26/05/2005, per DONGBAN – MENSEM, JCA. See also OLUBUSOLA STORES V. STANDARD BANK (1974) 4SC 51 at 54: AHMEG V. TRADE BANK LTD. (1998) 10 NWCR (P. 524) 290 at 297: FIRST BANK PLC V. KHALADU (1993) 9 NWUR (Pt 315) 44 at 57, NWAKAMA V. IKO LOCAL GOVT (1996) 3 NWLR (Pt 553) 298 at 308, respectively. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUDICIAL DISCRETION: FUNDAMENTAL ESSENCE OF THE PROPER EXERCISE OF JUDICIAL DISCRETION

It ought to be reiterated for the avoidance of doubt, that the very fundamental essence of the proper exercise of judicial discretion is rooted in the belief that it be exercised in accordance with well established rules of law practice, fairness and justice and not in accordance with whimsical opinion, humour parochial, or sentimental disposition. Thus, strict compliance with well established rules of law, reason and forensic logic are undoubtedly veritable handmaids for proper exercise of a judicial discretion for the unique purpose of attainment of justice to the parties before the court. See OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 7 NWLR (pt. 270) 462; ANPP V. REC, AKWA IBOM STATE at 512 – 513 paragraph G-C per Saulawa, JCA. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

DISCRETIONARY POWER OF COURT: WHETHER THE EXERCISE OF A DISCRETIONARY POWER IS WITHIN THE EXCLUSIVE JURISDICTIONAL PRESERVE OF A TRIAL COURT OR TRIBUNAL

JUSTICES

MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED M. SAULAWA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ALIYU IBRAHIM GEBI Appellant(s)

AND

1. ALHAJI GARBA DAHIRU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is fallout of the ruling of the National and State Assembly Election Petition Tribunal Bauchi State, which was delivered on June 23, 2011. By the ruling in question, the lower Tribunal dismissed the Appellant’s application, filed on June 15, 2011, seeking to dismiss the 1st and 2nd Respondents’ petition for lack of competence. Not unnaturally, the Appellant was dissatisfied with the decision of the lower Tribunal. Thus, he filed a notice of appeal in the registry of the lower Tribunal on July 4, 2011, which is predicated upon a total of seven ground of appeal.
FACTS AND CIRCUMSTANCES GIVING RISE TO THE APPEAL:
The facts and circumstances leading to the instant appeal are discernible from the entirety of the records of appeal itself, which was evidently transmitted to this Count on July 15, 2011. It is evident from the record, that the 1st and 2nd Respondents’ petition was dated and filed in the lower Tribunal on April 29, 2011.
By the said petition, both the 1st Respondent and the Appellant had contested the election for the Federal House of Representatives, Bauchi Federal Constituency, which was held on April 9, 2011 on the platforms of the People’s Democratic Party (PDP) and the Congress for Progressive Change (CPC), respectively. They contested the election along with some other contestants. On April 10, 2011, the results of the election were declared, with the Appellant and 1st Respondent having allegedly scored 93,540 and 45,877 votes, respectively. The 4th Respondent allegedly declared the Appellant as the winner of that election. Both the 1st and 2nd Respondents were dissatisfied, thus filed the said petition in the lower Tribunal on April 29, 2011. See pages 1 – 118 of the Record.
On May 10, 2011, the Appellant entered a memorandum of conditional appearance. On May 25, 2011, the Appellant filed a reply to the petition vide the Counsel thereof, Mallam Mohammed S. Shuaib, Esq. See pages 122 – 309 of the Record.
It is equally evident on the face of the record, that on June 1, 2011 One G. Ofodile Okofor Esq. OON (SAN) wrote what appears to be a letter (at page 310 of the Record) to the lower Tribunal’s Secretary, to the following effect:
IN THE NATIONAL ELECTION PETITION TRIBUNAL HOLDEN AT BAUCHI
PETITION NO: NA/HR/EPT/BAU/04/2011
IN THE MATTER FOR THE ELECTION TO THE HOUSE OF REPRESENTATIVE FOR BAUCHI FEDERAL CONSTITUENCY, HELD ON THE 9TH APPIL, 2011

BETWEEN
1. ALH. GARBA DAHIRU
2. PEOPLES DEMOCRATIC PARTY (PDP) – PETITIONERS

AND

1. ALIYU IBRAHIM GEBI
2. CONGRESS FOR PROGRESSIVE CHANGE (CPC)
3. INDEPENDENT NATIONAL ELECTION COMMISSION (INEC) – RESPONDENTS

THE SECRETARY NATIONAL ASSEMBLY ELECTION TRIBUNAL BAUCHI PRE-HEARING NOTICE FOR PRE-HEARING SESSION BROUGHT PURSUANT TO PARAGRAPH 18(1) 4(2) FIRST SCHEDULE TO THE ELECTORAL ACT 2011 AS AMENDED
Could you please issue a pre-hearing notice as in form 008 for the above petition.
…
G.O. Ofodile Okafor ESQ O.O.N. (SAN)
Mclarb (UK) with P.C. Eze Esq.
K. Mogaji & Associates
Re-Insurance Bello Way Bauchi.
(See page 310 of the Record).
It is instructive, that the learned Senior Counsel, Ofodile, SAN had written an exactly similar letter to the Secretary of the lower Tribunal on June 10, 2011. See page 311 of the Record.
On June 14, 2011, the Secretary, pursuant to the Appellants’ letters in question, served upon the Appellants and 1st Respondent with the “HEARING NOTICE FOR PRE-HEARING SESSION”. The 2nd and 3rd Respondents were, however served with the said notice for pre-hearing session on June 13, 2011.
“HEARING NOTICE FOR PRE-HEARING SESSION TAKE NOTICE that you are required to attend the Tribunal/Court on the 21st day of June, 2011 of 9 o’clock in the forenoon. For a pre-hearing session for the purposes set out hereunder.
I….. (a) Disposal of all matters which must or can be dealt with an interlocutory application.
(b) Giving directions as to the future of the petition as appear best adapted to secure its just. Expeditious and economical disposal in view of the urgency of election petitions.
(c) Giving directions an order of witnesses to be called an such documents to be tendered by each party to prove their cases having in view the need to expeditious disposal of the petition.
(d) Fixing clear dates for hearing of the petition. (See page 312 of the Record).
On June 15, 2011, in reaction to the pre-hearing session notice served thereupon, the Appellant filed in the lower Tribunal a Motion on Notice seeking the following reliefs:
1. AN ORDER DISMISSING THIS PETITION for being incompetent the Petitioners failed to apply for the issuance of pre-hearing notice as in Form TF 007 as mandatorily required by Paragraph 18 (i) of the First Schedule to the Electoral Act as amended.
2. AN ORDER PURSUANT TO PARAGRAPH 38 RULE (i) (b) OF THE “FIRST SCHEDULE COMPELLING THE PETITIONERS to pay the Appellant the sum of N5, 000,000.00 (Five Million Naira) being the needless expenses incurred by the Appellant in the course of defending this Petition.
The application was predicated upon a total of four grounds, to wit:
1. The Petitioners were served with the Applicant’s reply on the 25th day of May 2011.
2. The Petitioners are obliged to file the application envisaged by Paragraph 18 (i) of the First Schedule to the Electoral Act 2011. As Amended on or before the 1st day of June 2011.
3. The petition as presently constituted is incompetent and this Honourable Tribunal has no jurisdiction to entertain it.
4. The Applicant has incurred expenses of over N5, 000,000.00 (Five Million Naira) in the course of defending this petition.
Issues having been joined by parties, the application in question proceeded to hearing on June 21, 2011. Ruling was reserved and accordingly delivered on June 23, 2011. The lower Tribunal, in the considered ruling thereof came to the conclusion, inter alia, as follows:
“It is evident that the Tribunal has discretion to overlook any such breach as if is nothing more that a mere irregularity and moreover has not occasioned a miscarriage of justice. This is more so because the jurisdiction of this Tribunal is derived principally from section 285 of the constitution and the Electoral Act 2010 as amended.
“It is also our view that the provision of a rule of practice like paragraph 18(1) of the first schedule cannot operate to curtail the power of the tribunal in of his circumstance to do substantial justice rather than technical justice.
Also by the provision of Paragraph 53(4) of the first schedule of Electoral Act 2010 as amended, an election petition shall not be defeated by an objection as to form if it is possible at the fine objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or Court.
For avoidance of doubt, our position is that the alleged breach (if any) of writing a letter for the issuance of pre-trial notice in this case is not fatal to warrant the striking out of the petition. More so that at this stage of the proceedings, the applicant has not shown any miscarriage of justice or injustice he stands to suffer by the method employed in moving this Petition to the stage of pre-trial conference.
In the end result, we are of the view that the letter written to the tribunal as in this case implies and carries out the intention and requirement of Paragraph 18(1) of the first schedule to the Electoral Act 2010 (as amended).
The application of the 1st Respondent/Applicant for the striking out of this Petition to us lacks merit and it is hereby dismissed.
Having dismissed the first relief has no leg or basis to stand and they are therefore also dismissed.
In all, the 1st Defendant application to dismiss petition fails in it’s entirely and is accordingly dismissed.
(See page 369 – 370 of the Record).
As alluded to above, the above ruling of the lower Tribunal has not gone down well with the Appellant. Thus, resulting in filing the instant appeal. The notice of appeal filed on July 4, 2011 is predicated upon a total of seven grounds of appeal. See pages 371 to 378 of the Record.
It must be mentioned, at this point in time, that only the Appellant and the 4th Respondent had so far deemed it fit to file their respective briefs of argument. The Appellant’s brief was doted 05/08/2011, but filed on 08/08/2011. With the leave of Court, the Appellant’s brief was deemed as having been properly filed and served on 10/08/2011. On the other hand, the 4th Respondent’s brief was filed on 11/08/2011.
Most instructively, when the appeal last came up for hearing on August 17, only the Appellant’s learned Counsel was in Court. None of the four Respondents was represented in Court on that day. Not unnaturally, the appellant’s learned Counsel, Mallam Mohammed S. Shuaib Esq. urged upon the Court to deem the 4th Respondent’s brief aforesaid as having been duly argued, in accordance with the provisions of Paragraph 18 of the Practice Directions.
Having adopted the argument contained in the brief thereof, the Appellant’s learned Counsel urged on the Court to allow the appeal, set aside the decision of the lower Tribunal and accordingly dismiss the petition (in limine).
In the course of the submission thereof, the learned Counsel had alluded to the affidavit he filed on 08/08/2011, challenging the record of appeal regarding the alleged backdating of the letter in question. That submission has so far been incorporated in Issue No. 2 of the Appellant’s brief. The learned Counsel commendably filed additional authorities regarding the issue of filing an affidavit challenging the record of appeal. The additional authorities are as follows:
(i) GONZEE (NIG) LTD V. NERD (2005) 13 NWLR (pt.943) 634
(ii) AGWARANGBO V. MAKANDE (2000) 9 NWLR (pt. 672) 341
(iii) EHIKIOYA V. COP, BENDEL STATE (1992) 4 NWLR (Pt.233) 57.
We were equally referred to page 351 of the Record of Appeal. It was reiterated by the learned Counsel that the issue of backdating was raised at the lower Tribunal. Thus, the submission of the learned counsel having come to a close, the appeal was reserved for delivery of judgment.
I have accorded an ample, albeit very critical, consideration upon the nature and circumstances surrounding the appeal, the briefs of argument of the learned Counsel to the respective parties vis-‘E0-vis the record of appeal, as a whole.
The Appellant’s brief spans a total of 23 pages. At pages 2 and 3 thereof, three issues have so for been formulated by the Appellant’s learned Counsel, viz:
“(a) Whether the failure of the First and Second Respondents to file an application for the issuance of the pre hearing notice as mandatorily required by paragraph 18(1) of the First Schedule to the Electoral Act 210 as amended has not rendered the said Respondents’ petition incompetent thereby depriving the Tribunal of the Jurisdiction to hear the petition?
(b) Whether the National and State Houses of Assembly Election Petition Tribunal, Bauchi State was right in ignoring the issues of back dating of the Letter allegedly filed on the 1st day of June 2011 as an application for the issuance of pre hearing notice as well as the non payment of filing fees for the said letter by the First and Second Respondents?
(c) Whether the Tribunal was right in refusing to follow in RIRUWAI V. SHEHARAU (2008) 12 NWLR (PART 1100) 142 AND BADAMASI AYUBA & 1 OR V. INEC & 3 ORS (UNREPORTED) APPEAL NO. CA/EP/K/15/2007 DELIVERED ON THURSDAY, THE 14TH DAY OF MAY 2009 as well as the decision of the Supreme Court in the case OKEREKE V. YAR’ADUA (2008) 12 NWLR (PART 1100) 95 contrary to the well established principle of stare decisis?
(See pages 2 – 3 of the Appellant’s brief).
The first issue was indicated to have been distilled from grounds 1 and 2 of the Appellant’s notice of appeal. In a nutshell, the submission of the learned Counsel on the issue in question is to the effect, inter alia, that the 1st and 2nd Respondents’ petition is incompetent for their failure to file the application for a pre-hearing conference notice as mandatorily required by paragraph 18(i) of the First Schedule to the Electoral Act, 2010 as amended. Thus, the lower Tribunal was allegedly deprived of the jurisdiction to entertain the said petition.
It was equally argued that the provisions of paragraph 18(i) (supra) are clear, unambiguous and mandatory. The Appellant’s reply to the petition (dated 17/05/2011) was served on both the 1st and 2nd Respondents on 25/5/2011. The application for the issuance of pre-hearing notice ought to have been filed on or before the 01/06/2011, being the fast day of the seven days allowed them from 25/05/2011. According to the learned Counsel, the law is settled that where a petitioner fails to apply within seven days provided, then the petition thereof, becomes incompetent. Thus, the Tribunal lacks jurisdiction to entertain the petition. See BADAMASI AYUBA & 1 OR V. INEC & 3 ORS (unreported) Appeal No. CA/EP/HR/15/2009, dated 14/05/2009 at pages 23 – 24, per Baaba, JCA.
It was postulated that the provisions of paragraph 3(i) of the Election Tribunal and Court Practice Directions, 2007, upon which BADAMASI’s case supra) was decided, are “word for word in pari material’ with those of paragraph 18(i) of the current First Schedule to the Electoral Act 2010. See also RIRUWAI V. SHEKARAU (2008) 12 NWLR (Part 1100) 142 at 149 paragraphs D-E; OKEREKE V. YAR’ADUA (2008) 12 NWLR (Pt. 1100) 95 at 118 paragraphs B – E.
It was alleged that what the lower Tribunal did tantamount to making or amending the law to accommodate the 1st and 2nd Respondents’ letter of 01/06/2011 under the guise of interpreting the provisions of paragraph 18(i) (supra). That, it’s a settled law, that it’s not part of judicial functions for a Court to engage in law making or amendment of laws under the guise of juridical interpretation. See ACTION CONGRESS V. INEC (2007) 12 NWLR (Pt. 1048) 222 at 275 – 276. THOMSON V. GOOLD & CO. (1910) AC 409 at 420 per Lord Mersy: VICKERS, SONS & MAXIM LTD. V. EVANS (1910) AC 444 at 445: UGWU V. ARARUME (2007) 12 NWLR (1048) 367 at M2 F – H.
Paragraph 47 (3), (4) and (5) of the First Schedule to the Electoral Act, 2010, was equally cited and relied upon, to the effect that an application under the provisions of the said Schedule cannot be said to be by way of a mere letter.
That, the combined effect of paragraph 18(i) and 47 (2) – (5) of the First Schedule (supra) has provided the time and manner in which the application must be brought. Unless the method prescribed by the law is followed, then the provisions have not been complied with. See DANGOTE V. CSC PLATEAU (2001) All FWLR (Pt.50) 1639 at 1663: AMAECHI V. INEC (2008) All FWLR (Pt. 407) 1 at 98 C-D; BADAMASI’s case (supra) at 28: OKEREKE V. YAR’ADUA (supra) at 324 & 349.
The court has been urged upon to resolve the first issue in favour of the Appellant, and accordingly dismiss the petition.
Issue No. 2 is predicated on grounds six and seven of the Appellant’s notice of appeal. It was submitted, inter alia, that the issues of backdating of court process which was raised in the lower Tribunal though not recorded, is a serious and fundamental one which touches on the integrity and impartiality of the Tribunal. Thus, the reasonable observer may rightly conclude that the Appellant would not receive a fair trial before such a Tribunal. See SOMAI SONKA CO. (NIG) LTD V. DEGE (2001) 9 NWLR (pt 718) 312 at 322 E – F.
The court has been urged to exercise its powers under section 15 of the Court of Appeal Act to hold that the process alleged filled on 01/6/2011 by the 1st and 2nd Respondents is a nullity for having been filed out of trial. No fees were said to have been paid for the letter in question. No evidence of payment of filing fees for the letter. See pages 349, 351 & 361 of the record.
It was argued that the Tribunal erred in law by failing to give any decision on the issues in question. We were urged to so hold that the payment of filing fees is a pre-condition for the validity of any process filed in court. See S.T.C V. Quorum Consortium Ltd (2009) 9 NWLR (pt. 1145) 1 at 33; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (pt. 424) 258 at 292: OKOLO V. UBN (2004) 3 NWLR (pt. 859) 87. MOORE V. TAYEE (1934) 2 WACA 43.
The court has been urged to equally resolve the 2nd issue in favour of the Appellant.
The 3rd issue was distilled from grounds 3, 4 & 5 of the notice of appeal. Basically, the grouse of the Appellant in issue 3 is that the lower tribunal’s failure to follow and apply the decisions of the Court of Appeal and Supreme Court in RIRUWAI V. SHEKARAU (supra), AYUBA V. INEC (supra) and OKEREKE V. YAR’ADUA (supra), has amounted to a clear breach of the time honoured principle of stare decisis. See ATOLAGBE V. AWUNMI (1997) A NWLR (pt 522) 536 at 544: NAB LTD V. BARRI ENG. (NIG) LTD (1995) 8 NWLR (pt 413) 257 at 289 – 290: DALHATU V. TURAKI (2003) 15 NWLR (pt 843) 310 at 350 paragraphs E – F.
According to the Appellant’s learned counsel, the decision of the lower tribunal is replete with instances where the decisions of both the Court of Appeal and the Supreme Court were flagrantly flouted when all the cases in question were on all fours. The court has been urged to accordingly resolve the issue in favour of the Appellant, set aside the decision of the lower Tribunal, pursuant to section 15 of the Court of Appeal Act (supra). The court has also been urged upon to accordingly apply the decisions in RIRUWAI V. SHEKARAU (supra); AYUBA V. INEC (supra); as well as OKEREKE V. YAR’ADUA (supra), respectively.
In conclusion of the submission thereof, the learned counsel has urged on the court to allow the appeal, set aside the ruling and accordingly grant all the reliefs sought by the Appellant in the motion, dated June 13, 2011.
On the other hand, the 4th Respondent has raised a safe issue in the brief thereof, which is to the following effect:
Whether the learned Justice (Sir) of the tribunal below were right to have held that the 1st and 2nd Respondents applied for the issuance of pre – hearing notice as mandatorily required by the provision of paragraph 18 (1) of the First Schedule to the Electoral Act 2010, as Amended.
Without much ado, the 4th Respondent’s learned counsel I.D. Buzi, Esq.; submitted, inter alia, that the lower tribunal had erred in law to have held that the 1st and 2nd Respondents have complied with the mandatory provisions of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010, as amended.
It was further submitted, that the 1st and 2nd Respondents did not apply for the issuance of pre-hearing notice until on June 10, 2011 after the expiration of the seven days upon being served the Appellant’s reply (to the petition). That, having recognized the fact that they were out of time, the 1st and 2nd Respondents tried to cure that defect by the answer in paragraph 14 of the pre-hearing information sheet thereof (see page 342 of the Record).
It was argued, that the Respondents ought to have countered the Appellant’s deposition contained in the motion thereof by way of a counter affidavit. See JACK V. SHELL (2002) 12 MJSC 114 at 116.
The learned counsel further argued that since there were two applications by the 1st and 2nd Respondents, it was not for the lower tribunal to choose which one to use for the parties who filed them, especially in view of the fact that the Appellant had raised the issue of non-filing fees and backdating of the letter in question.
According to the learned counsel, the application envisaged by paragraph 18 (1) (supra) could be either a motion on notice or motion exparte, but not a letter to the Secretary of the Tribunal. That, paragraph 18 (1) must be read in conjunction with paragraph 47 (2) and (3) of the First Schedule to the Electoral Act, 2010. See BADAMASI AYUBA V. INEC (supra) to the effect, inter alia, that:
“Courts of law do not act on mere letters but on applications brought before them”.
Conclusively, the court has been urged to accordingly allow the appeal and set aside the ruling of the lower Tribunal, on ground of non application for issuance of pre-hearing notice by the 1st and 2nd Respondents.
I have accorded an apply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel to the Appellant and 4th Respondent, contained in the Respective briefs thereof. It is needless to state that I have equally painstakingly perused the record of appeal, in the entirety thereof.
As alluded to above, only the Appellant and the 4th Respondent filed their respective briefs of argument. None of the 1st – 3rd Respondents had deemed it fit to file brief. It is a well settled principle, that under the Election Tribunal and Court Practice Directions, 2011, the Respondents were indeed required to file in the court their brief of argument within 5 day of service of the Appellant’s brief. See paragraph 12 of the Practice Directions, 2011 thus:
“12. The Respondent shall file in the court his own Brief of Argument within 5 days of service of the Appellant’s brief. Paragraphs 11 (a) to (b) above shall apply mutandis to the Respondent’s Brief of Argument.”
Most regrettably, the Practice Directions 2011 (supra) is silent regarding the likely consequence of a respondent’s failure to file a brief. Thus, the provisions of the Court of Appeal Rules, 2011 have to be resorted to. It is instructive, that by virtue of the provision of order 18 Rule 10 of the Court of Appeal Rules, 2011, where, as in the instant case, a respondent fails to file the brief thereof, he will not be of allowed to canvass an oral argument of the hearing of the Appeal.
For the avoidance of doubt, it must be reiterated that the fact that the 1st – 3rd Respondents have not filed the brief thereof, not withstanding. As it is a trite and well established cardinal principle, that the Appellant has a duty to establish his case on the balance of probability, and not on the weakness of the defence. That is the reality of the position under the Nigerian adversarial judicial system.
I have critically contrasted the issues formulated in the respective briefs of argument of the Appellant and the 4th Respondent. Thus, I am of the firm view that the three issues raised in the Appellant’s brief are more relevant to the grounds of appeal than the Respondent’s sole issue. Regrettably, the sole issue formulated in the 4th Respondent’s brief has not been tied down to any of the seven grounds of the Appellant’s notice of appeal. And it’s indeed a trite and well settled principle, that issues raised or formulated in a brief of argument must be determined upon the basis of competent grounds of appeal challenging the decision appealed against. Thus, neither a party to the appeal, nor the court itself is allowed to raise any issue which is not related to, or arises from a ground of appeal. See CSS BOOKSHOP LTD. V. RTM CRS (2006) 11 NWLR (pt. 991) 530; ONIAH V. ONYIA (1989) 1 NWLR (pt. 99) 514: NWOSU V. UDEAJA (1990) 1 NWLR (pt 125) 188; MARK V. EKE (2004) 5 NWLR (pt 865) 54: OKOREAFFIA V. AGWU (2008) 12 NWLR (pt 1100) 165 at 191 paragraphs C – D.
Most particularly in the case of OKOROAFFIA V. AGWU (supra), this court was recorded to have apply held, inter alia, that –
Arguments canvassed in brief of argument must be predicted on, or traceable to the issue for determination in the appeal, as the grounds of appeal from which such issues for determination were formulated. Consequently, any issue which does not arise from the ground of appeal is irrelevant to the appeal, incompetent, and therefore liable to be struck out by the court.
Per Saulawa, JCA at 191, paragraphs E-F. See also IDIKA V. ERISI (1988) 2 NWLR (pt. 78) 563; NKADO V. OBIANO (1997) 5 NWLR (pt 503) 31; ANIMA SHAUN V. UCH (1996) 10 NWLR (Pt 476) 65: KARI V. GANARAM (1997) 2 NWLR (pt 488) 380; DADA V. DOSUNMU (2006) 18 NWLR (pt 1010) 134: FRN V. OBEGOLU (2006) 18 (pt 1010) 188.
In the circumstance, therefore, I would want to believe that this appeal ought to be determined on the basis of the three issues so for formulated in the Appellant’s brief.
ISSUE NO. 1
As copiously alluded to above, the first issue raises the vexed failure of the 1st and 2nd Respondents to file an application for the issuance of the pre-hearing notice as required by paragraph 18 (1) of the First Schedule to the Electoral Act 2010, as amended, has not rendered the petition incompetent thereby depriving the lower Tribunal of the necessary jurisdiction to hear the said petition.
It is my belief that the answer to that fundament of question may not be farfetched. The requirement for pre-hearing session, rescheduling of election petitions, et al, has been explicitly provided in the Electoral Act, 2010, as amended (Supra). Most especially, the first schedule to the Act has provided, inter alia, as follows:
18 (1) Within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of Pre-hearing notice as inform TF 007.
(2) Upon application by a Petitioner under sub-paragraph (1) of this Paragraph the Tribunal or Court shall issue to the parties or their legal Practitioners (if any) a Pre-hearing conference notice as in form TF 007 a CCOM: Parried by a prehearing information as in form IF 008 for –
(a) the disposal of all matters which can be dealt with on interlocutory application.
(b) giving such directions as to the future course of the petition as appear best adapted to secure its just, expeditious and economical disposal in view of the urgency of election petitions.
(c) giving directions an order of witnesses to be called and such documents to be tendered by each party to prove their cases having in new the need for the expeditious disposal of the petition; and
(d) fixing clear dates for hearing of the petition.
The pertinent question, at this point in time, is whether or not the 1st and 2nd Respondents (petitioners) have complied with the above well set out provisions of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (supra). I have had a cause, for obvious reasons, hereinabove to copiously allude to the relevant portion of the findings of the lower Tribunal at page 369 of the record of appeal. At the risk of being repetitive, I have deemed it expedient to, once more refer to the portion of the said findings, viz:-
For avoidance of doubt our position is that the allege breach (if any) of writing a letter for the issuance of pre-trial notice in this case is not fatal to warrant the striking out of the petition. More so that at this stage of the proceedings, the applicant has not thrown any miscarriage of justice or injustice he stands to suffer by the method employed in moving this petition to the stage of pre-trial conference.
In the result, we are of the view that the letter to the tribunal as in this case comprise and carries out the indention and requirement of paragraph 18 (1) of the first schedule to the Electoral Act 2010 (as amended). See page 369, lines 19-27, of the record.
Without much ado, I would want to believe that the above findings of the lower Tribunal are rather unassailable. And my reason for saying so is not farfetched. Instructively, the term application as a noun simply denotes a request or petition. It may also mean a motion. Thus, the term ‘apply’ as a verb denotes to make a formal request or motion: as for instance, to apply for a loan or an injunctive relief. Contrastively, the term motion denotes a written (or oral) application requesting a court to make a specified ruling or order as in motion for leave to appeal; motion for summary judgment, et al. See BLACK’S LAW DICTIONARY, 8th edition of pages 108, 109, 1036, and 1038, respectively.
In the instant case, it’s not at all in dispute, that the actual mode by which the ‘application’ for the issuance of a pre-hearing session notice has not been provided for under the First Schedule to the Electoral Act 2010 (Supra). However, the formats for both the HEARING NOTICE FOR PRE-HEARING SESSION AND PRE-HEARING INFORMATION SHEET referred to under paragraph 18 (1) & (2) (Supra) have been provided for as forms TF 007 and TF 008. Analogically, the requirement for an application under paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (Supra), could be likened to that under the provisions of order 23 of the High Court (Civil Procedure) Rules, 1988 regarding the undefended list procedure which provides, inter alia, thus:
1. Whenever application is made to a court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and is stating that, in the deponent’s belief, there is no defence there to, the court shall, if satisfied that there are good grounds for believing that there is no defence there to, enter the suit for hearing in what be called the undefended list, and mark the writ of summons accordingly, and enter there on a date for hearing suitable to the circumstances of the particular case.
It is trite that, the above provision has been a subject of various interpretations by both the Court of Appeal and Supreme Court alike. In one of such decisions, it was held by this Court that –
By the meaning of application (Supra) it appears the intendment of the provisions of order 23 and particularly the use of the word application is that a special request must be made first before a writ of Summons is placed on the undefended list. The substratum of the provision is the application. Once there is all application, however made either by a motion exparte under order 8 or by the filling of form one under order 5, the legal requirement is fulfilled once an application is made. In the case of OKNOFUA VINCENT OMOJAHE V. UWESU UMORU 42 ors (1999) 5 SCNJ P. 280 at 287, the Supreme Court held that Statutes are construed to promote the general Purpose of the legislature. Judges ought not to go by the letter of the Statute but also by the spirit of the enactment. See F. O. OGBAEGBE V. FIRST BANK OF NIGERIA PLC APPEAL NO CA/PH/230/2001, date at 26/05/2005, per DONGBAN – MENSEM, JCA. See also OLUBUSOLA STORES V. STANDARD BANK (1974) 4SC 51 at 54: AHMEG V. TRADE BANK LTD. (1998) 10 NWCR (P. 524) 290 at 297: FIRST BANK PLC V. KHALADU (1993) 9 NWUR (Pt 315) 44 at 57, NWAKAMA V. IKO LOCAL GOVT (1996) 3 NWLR (Pt 553) 298 at 308, respectively.
In the case of BADAMASI AYUBA V. INEC (Supra) cited and relied upon by the Appellant’s learned counsel, it’s obvious that the motion filed by the petitioner for the issuance of the pre-hearing notice (form TF 007) was following the directive of the Tribunal’s chairman that all such applications should be by way of motion. See paragraph 5 of the Appellant’s affidavit, copiously referred to at page 4 of the judgment in question.
However, although the Appellant’s application in AYUBA’s case (Supra) was by way of motion, the lower Tribunal refused the application on the ground that it was filed out of the time provided by paragraph 3 (1) of the practice Directions, 2007. According to the lower Tribunal:
The implication of the foregoing is that there is no application for the issuance of pre – hearing notice within the contemplation of paragraph 3 (1) of the practice Directions. In the circumstance, we hereby invoke the provisions of paragraph 3 (4) of the practice Directions 2007 to dismiss the Petition as an abandoned petition.
Not surprisingly, the Court of Appeal came to the conclusion, rightly in my view, that:-
The Tribunal by the provision of paragraph 3 (4) of the Election Petition Tribunal and Court Practice Directions 2007 is precluded from hearing the petition where there is non compliance with the provisions of Paragraph 3 (1) of the Election Tribunal and Court Practice Directions, 2007 as in the instant appeal.
In the result I hold that there is no merit in this appeal which is hereby dismissed…” Per Ba’aba, JCA.
Of course, I am not unmindful of the view expressed by my learned brother Augie, JCA in the contribution to the lead judgment, to the following effect:
Thus, the application envisaged by the Practice Directions cannot be by way of a mere letter. Courts of law do not deal with or act on letters but with applications brought by way of motions. If the practice Directions intended the application to be made by a letter, it would have expressly stated so.
It should be borne in mind, that the lower Tribunals in both AYUBA’s case (supra) and the instant case were imbued with a far-reaching discretionary power to entertain the application for issuance of pre-hearing session notice either by way of motion or letter. It is so obvious that in AYUBA’s case (supra) the lower Tribunal insisted on filing a motion, in the instant case, the lower Tribunal deemed it expedient to satisfy itself to the effect that –
In the end result we are of the view that the letter written to the tribunal as in this case complies and carries out the intention and requirement of 18 (1) of the First Schedule to the Electoral Act 2010, (as amended). See page 369 of the Record. It ought to be reiterated for the avoidance of doubt, that the very fundamental essence of the proper exercise of judicial discretion is rooted in the belief that it be exercised in accordance with well established rules of law practice, fairness and justice and not in accordance with whimsical opinion, humour parochial, or sentimental disposition. Thus, strict compliance with well established rules of law, reason and forensic logic are undoubtedly veritable handmaids for proper exercise of a judicial discretion for the unique purpose of attainment of justice to the parties before the court. See OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1993) 7 NWLR (pt. 270) 462; ANPP V. REC, AKWA IBOM STATE at 512 – 513 paragraph G-C per Saulawa, JCA.

Indeed, it is a well settled principle of law that the exercise of a discretionary power is within the exclusive jurisdictional preserve of a trial court or Tribunal. Such a discretionary power must of course be seen to have been exercised not only judicially, but also judiciously. An Appellate court must exercise on extra caution to avoid any temptation to interfere with the exercise of the discretionary power duly vested in a lower court or Tribunal, unless it is absolutely shown that there is a justification for it to do so. See ALSTHOM S. A. V. SARKI (2005) 3 NWLR (pt 911) 208 at 224 – 225: CEEKAY TRADERS LTD V. GEN. MOTORS CO. LTD (1992) 2 NWLR (pt 222) 132; RASAKI A. SALU V. MADAM TOWURO EGEIBON (1994) 6 NWLR (pt 348) 23.
In essence, the opinion regarding the letter, as expressed in Augie, JCA’s contribution could of best, be described as on obita dicta, with due respect.
The second case cited and relied upon by the Appellant’s learned counsel, was that of RIRUWAI V. SHAKARAU (supra). Most essentially, in that case the Appellants filed their petition challenging the return of 1st Respondent. At the close of pleadings, they failed to apply for the issuance of pre-hearing notice, as prescribed by paragraph 3 (1) of the Election tribunal and Court Practice Directions, 2007. Consequently, the lower tribunal, Suo motu, stated the petition for dismissal and issued hearing notices to that effect. On the hearing date, the Appellants filed on application for on extension of time within which to apply for pre-hearing session. The application was refused. Not unexpectedly, the appeal against the lower tribunal decision was equally dismissed by this court thus:
An application in legal parlance or court procedure does not mean a letter written to the court but an application by motion on notice. See again paragraph 6 (2) of the Practice Directions, 2007 and the case of Sincerity and Trust Multipurpose Co-operative Society Ltd V. Emanuel (supra)
The learned counsel has not been able to convince the court that application envisaged can be by letter and as such this issue is also resolved against the Appellant for the reason stated above.
From the foregoing, the three issues formulated by the Appellant are resolved against him. The appeal lacks merit and it is hereby dismissed. The judgment of the lower tribunal is affirmed. Per Ndukwe – Anyanwu, JCA at 164.
However, it must be pointed out that in RIRUWAI’s case (supra), there was no proof at all that the purported letter was written to the lower tribunal for the issuance of the pre-hearing session notice. Not surprisingly, the Court of Appeal found as a matter of fact that –
The letter of 6th July, 2007 which the Appellant’s counsel claimed he wrote to the tribunal applying for pre-trial was not exhibited on any of its processes. This letter was also not found in the record of proceedings. Per Ndukwe – Anyanwu, JCA at 163 – 164.
In Okereke V. Yar’Adua (supra), the Appellant filed an election petition in the Court of Appeal challenging the election of the 1st and 2nd Respondents as President and Vice President of Nigeria. The Respondents on their part contested the competency of the petition. Thus, prompting the Appellant to file an application seeking an order to enable him furnish further and better particulars to the petition. The Court of Appeal heard all the applications together, upheld the preliminary objection, and accordingly struck out the petition for being incompetent.
On an appeal to the Supreme Court, it was held, inter alia, that –
The court below lacked competence and had no jurisdiction to entertain the motion on notice filed on 08/08/07 by the petitioner and the preliminary objection filed by the 1st and 2nd Respondents. The proceedings including the ruling delivered on the 20th March, 2007, are a nullity. They are hereby set aside…
In the final result, I find no merit in this appeal and it is hereby dismissed…
I hereby dismiss the Appellant/Petitioner’s petition in the court below. Per I. T. Muhammad, JSC at 121.
I think, it was Onnoghen, JSC who actually hit the nail into the head, when his Lordship held, inter alia, thus:
In view of the facts of this case and by virtue of the powers conferred on this court by section 22 of the Supreme Court Act, this court can and does assume the powers of the lower court conferred on that court by paragraph 3 (1) supra and exercise same by dismissing the petition of the Appellant for non compliance with the provisions of the Practice Directions, 2007. It is not enough for the Appellant to argue that the lower court, sitting not in pre-hearing session, has no jurisdiction to entertain the applications when he failed and or neglected to present an application before that tribunal or court for a pre-hearing session to hear the applications. He cannot benefit from his own default.
What’s more, by virture of the provision of paragraph 53(1) of the First Schedule to the Electoral Act, 2010 (Supra), the non-compliance with any of the provisions of this Schedule, or rule of practice shall not render any proceeding void, unless the lower Tribunal or court so deems fit. However, the proceeding may, in exceptional cases, be set aside either wholly or in part as irregular or amended, et al, on such terms as the lower tribunal or court may deem fit, reasonable and just. See also paragraph 53(4) (supra) to the effect that –
“(4) An election petition shall not be defeated by an objection as to form if it is possible at the time the objection is raised to remedy the defect either by way of amendment or as may be directed by the Tribunal or court.”
Hence, in the light of the above postulations, there is every cogent reason for me to hold that the three cases of BADAMASI AYUBA V. INEC (Supra), RIRUWAI V. SHEKARAU (Supra) and OKEREKE V. YAR’ADUA (Supra) cited and relied upon by both the Appellant and 4th Respondents in the respective briefs thereof, are distinguishable from the instant case. In my considered view, the decision of the lower tribunal to the effect that:
“The letter written to the tribunal as in this case complies and carries out the intention and requirement of Paragraph 18 (1) of the First Schedule to the Electoral Act 2010 (as amended)”.
As unassailable. And I hereby so hold. Resultantly, the issue No.1 ought to be, and some is here by answered in the negative, and accordingly resolved against the Appellant.

ISSUE NO. 2:
The second issue raises the vexed question of whether the lower tribunal was right in ignoring the issues of backdating of the letter allegedly filed on 1st day of June, 2011 as an application for the issuance of Pre-hearing notice, as well as the non payment of filing fees for the said letter by the 1st and 2nd Respondents. The said second issue was stated to have been distilled from both grounds six and seven of the notice of appeal. In a nutshell, the submission of the Appellant’s learned counsel on this issue is that (i). The letter in question was backdated to make it look as if it was filed on 01/06/2011, therefore within time; (ii) that no filing fees was paid by the 1st and 2nd Respondents for the letter: and (iii) that the application envisaged by the provisions of Paragraphs 18 (1) and 47 (2) – (5) of the Schedule is a motion and not a letter.
It was contended by the learned counsel, that the issue of backdating the letter in question is a serious and fundamental one, which touches on the integrity and impartiality of the Tribunal. See SO MAI SONKA CO. (NIG.) LTD V. ADZEGE (2001) 9 NWLR (pt 718) 312 at 322, E – F.
On the issue of non payment of fees, an allusion was, inter alia, made to the receipt No. Z008873791, dated 01/6/2011, which however the learned counsel alleged to be rather incongruous, thus further compounding the case of the 1st and 2nd Respondents. It was argued, that the non payment of fees is so material that it goes to the jurisdiction of the Court. That, the payment of filing fees is a precondition for the validity of any process filed in Court. See STC V. QUORUM CONSORTIUM LTD (2009) (Pt. 1145) 1 at 33; ONWUOBUFOR V. OKOYE (1996) 1 NWLR (pt 424) 258 at 292 OKOLO V. UBN (2004) 3 NWLR (Pt 859) 87: MOORE V. TAYEE (1934) 2 WACA 43.
On the whole, the learned counsel urged on the Court to resolve the second issue in favour of the Appellant.
I think, there is a need to, at this stage, categorically reiterate, that the issue of the alleged backdating of the 1st and 2nd Respondents’ letter is misleading, to say the very least. The record of the lower tribunal, most especially at page 364, is very clear on that point. The truth of the matter, as rightly found by the lower Court of the said page 364 of the record, is that there were two separate and distinct letters: the 1st dated 01/06/2011, and the 2nd dated 10/06/2011, respectively.
Regarding the second letter of 10/06/2011, the lower Tribunal held, inter alia, thus:
The effect of this Undisputed fact is that due application for due issuance of Pre-hearing notice filed by the Petitioner date of 10th June, 2011 filed some date was filed out of time prescribed by law. The application cannot hold and we hereby hold that the Petitioners letter/application of 10th June, 2011 is a nullity and of no effect whatsoever.
Whereas, regarding the first letter filed on 01/06/2011, the lower Tribunal held, inter alia, thus:
The 2nd and earlier application filed by the petitioner was filed on 1st June, 2011. The 1st Respondent’s argument is that the said application is a mere letter addressed to the secretary of the tribunal and is not what is envisaged under paragraph 18 (1) of the 1st schedule to the Electoral Act 2010 as amended.
After according a far-reaching consideration to the submissions of the learned counsel vis-‘E0-vis the various authorities referred to therein, the lower tribunal came to the unassailable conclusion, thus:
“For avoidance of doubt, our position is that the alleged breach (if any) of writing a letter for the issuance of pre-trial notice in this case is not fatal to warrant the striking out of the petition…
In the end result we are of the view that the letter to the tribunal as in this case complied and carries out the intension and requirement of paragraph 18 (1) of the first schedule to the Electoral Act, 2010 (as amended), see page 369 of the record.
I think, I wouldn’t agree more with the above unassailable the findings of lower Tribunal.
Regarding the issue of the application for the issuance of the prehearing notice, there is every cogent reason to make me hold that the allegation is not only baseless, but also highly mischievous, if not predatory, to say the least. Indeed, the allegation of backdating a (judicial) process is a very serious criminal accusation. The standard of proof of which is that of proof beyond any reasonable doubt. See section 138 (1) of the Evidence Act, CAP E114, LAWS OF THE FEDERATION OF NIGERIA, 2004.
Most regrettably, the Appellant has acknowledged the fact that –
Strangely however, in the records before this court, a receipt number has now surfaced on the letter purportedly filed on the 1st day of June, 2011. See page 310 of the record. The receipt number – Z008873 791 is however incongruous and has compounded the case of the first and second Respondents.
However, it must be pointed out that the letter in question, at page 310 of the record, bears the characteristics or features of a motion. The only exception is that it was addressed to the Secretary. Thus, contrary to the highly orchestrated postulation of the learned counsel, the fact that the said letter was stamped and filing fees duly paid for, is not strange or novel at all.
I would want to believe that it’s rather unethically predatory for the learned counsel to have questioned the ‘integrity’ and ‘impartiality’ of the lower Tribunal in the court of discharging the judicial functions thereof. As extensively alluded to above, there is no basis at all for such uncharitable allegation by the learned counsel against the lower Tribunal. To question the integrity and impartiality of a court or tribunal, as was done by counsel in the instant case, tantamount to an accusation of bias against such a court or tribunal. And it’s a well settled principle, that, bias, with particular regard to court or Tribunal, is an inclination, predisposition or preparation, to determine a matter or cause in a certain preconceived way, without any regard to laid down principles or law. See ANPP V. REC AKWA IBOM STATE (2008) 8 NWLR (pt 1090) 453 at 526-527 paragraphs G – D; 528 C – E, where in it was held by this court, inter alia, thus:
“Bias may be attributable to a number of factors including corruption, vengeance, partnership, friendship, group membership or association” Per Saulawa, JCA. See also AZOUKWU V. NWOKANMA (2005) 11 NWLR (pt 937) 537.
Thus, in essence, the inevitable answer to issue No. 2 is most undoubtedly in the affirmative, and same is accordingly resolved against the Appellant.
ISSUE NO. 3
The 3rd and last, but by no means the least, issue raises the very vexed question of whether the lower tribunal was right in failing or refusing to follow and apply the binding decisions of the Court of Appeal in RIRUWAI V. SHEKARAU (supra), and BADAMASI AYUBA V. INEC (supra), and that of the Supreme Court in OKEREKE V. YAR’ADUA (Supra), Contrary to the well established principles of stare decisis.
The said third issue was stated to have been distilled from grounds three, four and five of the notice of appeal. I would want to appreciate the very obvious fact, that having extensively dealt with issue No. 1 above and resolving same against the appellant; it would amount to a sheer academic exercise for me to dissipate further energy on issue No. 3. Undoubtedly, one of the fundamental objectives of stare decisis in the administration of justice system is to guarantee that the wheels of justice are not clogged and the streams of justice are kept crystally clear and pure. I think, it was Lord Hardwick who once remarked in as far back as 1742 that:
There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that in parties may proceed with safety both to themselves and their characters, see the St. JAMES EVENING POST case (1742) 2 ATKINS 469 at 472.
It is indeed a trite fundamental principle, that the well cherished time tested doctrine of judicial precedent, otherwise popularly known in Latin as STARE DECISIS, requires all Courts of law of Subordinate hierarchical jurisdiction to follow and apply the decisions of Superior Courts of records, even where these decisions are obviously wrong; having been predicated upon a false premise. This time tested doctrine is the bedrock upon which the consistency of common law is based. See NGWO V. MONYE (1970) 1 ALL NWLR all at 100; NAB LTD V. BARRI ENG. (NIG) LTD (1995) 8 NWLR (pt. 843) 310 at 350 Paragraphs E-F. The term STARE DECISIS is a Latin derivative, denoting relenting to stand by things decided. The doctrine of precedent (Stare Decisis) makes it imperative, as alluded to above, for an inferior Court to follow earlier judicial Pronouncements (decisions) of superior Courts of records, when the same points arise again in litigation.
According to Rupert Cross & J.W. Harris in Precedent in English Law, 4th Edition 1991 at 100 –
The general or orthodox interpretation of stare decisis… is Stare rationibus decidendis (keep to the rationes decided of past cases), but a narrower and more literal interpretation is sometimes employed… According to Lord Reid, such a Situation arises when the ration decidendi of a previous case is obscure, out of accord with authority or established principle, or too broadly.
As extensively postulated under issue No. 1 above, all the three cases of RIRUWAI V. SHEKARAU (Supra), BADAMASI AYUBA V. INEC (Supra), and OKEREKE V. YAR’ADUA (Supra), are quite distinguishable form the instant case. Thus, it would be most unreasonable, to say the least, for this Court to temper with the commendably unassailable reasoning and conclusion there reached by the lower Tribunal in the instant case. I do not entertain the slightest belief or misgiving that it would be fair and just to upturn or interfere with the decision that has appeared to have been commendably reached by the lower Tribunal. And I so hold. Thus, the 3rd issue ought to equally be answered in the affirmative, and accordingly resolved against the Appellant.
Before placing the last dot to this Judgment, I have deemed it imperative to at this point in time to reiterate the time tested cardinal principle, that a lawyer, as an officer in the hallowed temple of justice, owes a duty to uphold and observe the rule of law, promote and foster the cause of justice maintain a high standard of professional conduct and etiquette, thus he shall not by no means engage, in conduct which demeaning of a legal practitioner. As once authoritatively observed by this court –
“it is trite, that the learned counsel as officers in the temple of justice have a duty to accord the tribunal’s chairman and members due respect, courtesy, and dignity. See Rule 35 of the Rules of Professional conduct for legal practitioners (supra)… the counsels to treat the tribunal with respect, courtesy, and dignity does not begin and end in the precint of the four walls of the Tribunal’s building only. The counsel has an obligation to imbibe those sterling qualities even in his written submissions and other processes including notice and grounds of appeal and brief of argument. Thus, in my view, it would amount to an infraction of Rule 35 (supra) whereby a counsel, as in the instant case, falsely and rather mischievously, if not predatorily, accused a Judge of bias.” See ANPP V. REC AKWA IBOM STATE (supra) at 528 paragraph E-H, per Saulawa, JCA; USANI V. DUKE (2006) 17 NWLR (pt. 1009) 610 at 647 per Aderemi, JCA (as he then was).
Hence, having resolved all the three issues against the Appellant, I have no hesitation what so ever in coming to the most inevitable conclusion, that the instant appeal is grossly unmeritorious, thus ought to be dismissed by this court.
Consequently, the said appeal is hereby dismissed by me. The ruling of the lower tribunal, delivered on June 23rd, 2011 is hereby accordingly affirmed.
I make no order as to costs.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree entirely with the reasoning and conclusions arrived at in the lead Judgment prepared by my learned brother, Saulawa JCA.
The provisions of paragraph 18 of the First Schedule, Rules of Procedure for Election Petitions of the Electoral Act 2010 as amended are a formidable one. It is a unique and fundamental provision of dare consequences in the election adjudication.
A wholistic analysis and perusal of para 18 discloses a common feature in all the sub paragraphs; a salient albeit silent quest for the determination of electoral matters timeously on the merit. While “preservative” provisions are built in right through the said paragraph 18 to ensure that the tenents of fair hearing are upheld, there are also mandatory time line provisions. A few examples may convey the idea better. In paragraph 18(1) the Petitioner is to apply at the Registry for the issuance of a pre-hearing notice and the Respondent may apply also. Where the Petitioner fails to apply and is out of time, the Respondent may apply but only by filing a motion paragraph 18(3). The motion is requisite because of this stage, when the Petitioner fails to apply and is out of time, the Respondent moves to have the petition dismissed. This clone is indicative of the simple but fundamental nature of the application for the issuance of the pre-hearing notice. Any method of application, either by a letter, a motion exparte or on notice is acceptable. When an issue arises as in this appeal as to the method of application, the learned members of the Tribunal have the discretion to determine whether a letter simpliter or a motion exparte or a notice is adequate. In my opinion, a lot is required in a request to issue pre-hearing notice. It is the failure to make the request that is fatal to the petition, not the method of making it.
In the circumstance, the learned members of the Tribunal have discretion. However, where the application is not made of all and the Petitioner is out of time, the Tribunal has no jurisdiction to extend the time within which to apply for the issuance of the pre-hearing notice. Thus, once pleadings close there is no discretion to extend time to apply to issue the pre-hearing notice.
If Judgment is entered for the Petitioner and against the Respondent for his failure as Stated in sub paragraph (11) (b) there is a remedy. Paragraph 18 (12) provides that the said Judgment may be set aside upon an application made within 7 days of the said Judgment. The only conditions is a payment of N20, 000.00 cost and an undertaking to participate effectively thereafter. A judicious exercise of discretion will always predispose a Judge to hear and determine a matter on the merit. It is my considered opinion that provisions interjected in statutes which give the Court the power to terminate proceedings in limine are meant to serve as alarm clocks to reluctant or indulgent litigants to keep them alert and on their toes until the suit is determined. However, some of such interjection provisions made mandatory, leave no room for maneuver. A typical example is in paragraph 18(1) when there is no request to issue pre-hearing Notice once time has lapsed there is no remedy. If the parties fail to act, the Tribunal must act otherwise; all subsequent proceedings are null and void being done without the requisite jurisdiction.
While lawyers may readily invoke the application of such provisions to determine proceedings in limine, the bench on the other hand should be slow in applying them unless such application is mandatory. Thus, when faced with applications to pre-maturely and conclusively terminate a suit, the learned Judges and Justices must consider such applications in terms of the principles of fair hearing which is a fundamental right enshrined in the 1999 constitution as amended (refer section 36(1)).
In considering the application to dismiss the petition in this appeal, the learned Judges of the Tribunal pensively navigated through the cases cited and urged upon them by the learned Counsel. They also adequately considered the import and intendment of the provisions of para 47 and 18(1) of the 1st Schedule in terms of the right to fair hearing. They judiciously elected the side of substantial rather than technical justice.
Paragraph 18 (1) is clear, unambiguous and indeed simple the petitioner shall apply for the issuance of pre-hearing notice. In fact the description of what the Petitioner shall apply for clearly shows that a simple request suffices. A written application puts the facts of the request on record as evidence of compliance. The application/request to issue activates the process of issuing Form TF007 which is done by the Secretary to the Tribunal (paragraph 7(i) of 1st Schedule of the Electoral Act). It befuddles me that so much ado is made about this very unambiguous provision and it is even more curious to expect that a petitioner can be shut out at infancy, upon an alleged failure to make this application by way of a motion! No doubt, a failure to put in the application at all, could be fatal to the Petitioner (Refer: OKEREKE V. YAR’ADUA (2008) 4 FWLR Pt.430 P626 @ 646).
An application for an application, as in a request, is a simple application; a “please, issue Form TF007” should be sufficient; all other details actually repose with the Court Registry before which all the processes are filed. To terminate an election petition for the simple reason of the form and not the substance of an enactment appears to be frivolously falacious.
The learned Counsel to the Appellant has drawn our attention to the decisions of this Court in the cases of:
1. RIRUWAI V. SHEKARAU (2008) 12 NWLR (PART 1100) 142
2. BADAMASI AYUBA & 1 OR V. INEC & 3 ORS (UNREPORTED) APPEAL NO CA/EP/K/15/2007 DELIVERED ON THURSDAY, THE 14TH DAY OF MAY 2009 as well as the decision of the Supreme Court in the case of OKEREKE V. YAR’ADUA (2008) 12 NWLR (PART 1100) 95 which the learned members of the Tribunal are alleged to have ignored. The said decisions were made under the provisions of the 2006 Electoral Act and the practice directives of 2007.
In refraining from following the decisions in
(1) ALH. BADAMASI AYUBA & ORS. V. INEC & 3 ORS. Per Ba’aba JCA
(2) RIRUWAI V. SHEKARAU per Ndukwe Anyanwu JCA,
the learned members of the Tribunal said those cases are distinguishable from that before them. They did not however, State the distinction. Did they thereby err? To determine the binding nature of those decisions of this court, it must be shown that the facts were either similar or same, the provisions of the applicable law are also same or similar and above all, that the issues distilled for hearing were same or similar with those for consideration (Refer: per Oputa in ADEGOKE MOTORS LTD V. ADESANYA). The learned members gave their reason at (page 365- 368 of the Record for this appeal). My learned brother Saulawa who prepared the lead Judgment has made the distinction, I need not repeat.
We are in this appeal, invited to interfere with the exercise of discretion by the learned members of the Tribunal. There are features which must exist before this Court may interfere with the exercise of discretion by the lower court, so that it does not appear like we are substituting our discretion for that of the Tribunal. For a court to interfere with the exercise of the discretionary power vested in the trial court it must be shown how the power was wrongly exercised to justify the intervention of the appellate court. (Refer ALSTHON S.A. V. SARKI (2005) 3 NWLR (PT. 911) 208 at 224-225, CEEKAY TRADERS LTD. V. GEN. MOTORS CO. LTD. (1992) 2 NWLR (PT. 222) 132 AND RASAKI A. SALU V. MADAM TOWURO EGEIBON (1994) 6 NWLR (PT. 348) 23).
The learned members elected substantial as against technical justice in the exercise of their discretion. I find it difficult to fault the learned members of the Tribunal in over looking technicalities in favour of giving effect to the constitutionally enshrined right to fair hearing. In the circumstance, their discretionary power was preserved and they correctly exercise it.
However, I must hasten to add that the learned members of the Tribunal are misguided in holding that paragraphs 53 and 47 of the 1st Schedule provide a cure to all defects, omissions or failure to comply with the provisions of paragraph 18 or of any provisions of a procedural law. They cited and relied on the case of FGN & ORS. V. ZEGBRA (2002) 18 NWLR Pt 798 p.162.
A dispassionate community consideration of the entire provisions of paragraph 18 of the 1st Schedule disclose an underlying intendment of the legislature to accommodate the principles of fair hearing of each stage of the Electoral proceedings but strictly within the time line set out for the determination of the petition. Time is therefore of the essence in this special procedures. Paragraph 18(2) (a – c) refer to expeditious disposal of matters.
In paragraph 18(1) there is a provision for an application with a dual edge: an application simpliciter or upon motion. My understanding is that where there is a failure to put the application simpliciter in the ordinary course of things and within time after pleadings, the application on motion comes in for the kill. In other words, if the Petitioner fails to put in on application within 7 days of the completion of exchange of pleadings, the Respondent may come by way of motion to have the petition dismissed for non-compliance.
We must make a distinction as to the form of the application and the fact of the application under paragraph 18(i). Form of application refers to the manner of making the request for the issuance of the Prehearing Notice – should it be by motion exparte, motion on notice or a simple letter application? I am unable to comprehend the argument that this vital request should be by motion on notice: apart from the secretary, who has the duty to issue the pre-hearing Notice in consultation with the Chairman of the Tribunal, who else is supposed to be put on notice and for what purpose? At the close of pleadings, the Petitioner has seven days within which to apply/request for the issuance if the Pre-hearing Notice. At the expiration of the seven days if he does not apply, the Respondent can apply, failing which the Tribunal must dismiss the petition suo motu. A petition dismissed under this paragraph is irredeemable: it is dead and cannot be revived; cannot be resuscitated. From this point forward, the learned members lack jurisdiction to do any other thing for they become functus officio in the said petition. This is very much unlike the ordinary civil procedure in which the court cannot suo motu enter judgment without an application from a party. Further, if Judgment is so entered, it is referred to as a default Judgment and can be set aside upon an application made within seven days. Not so with the election proceedings. The learned members of the Tribunal have no such discretion to revive a dead petition.
The special electoral adjudicatory procedure is different, unique; sui generis. My learned brother, Ba’aba JCA puts it admirably in these terms:
“An election petition is heard and determined by an appropriate election Tribunal as usually provided by the Constitution. In the 1999 Constitution, such provision is made under Section 285 and the 6th Schedule to the Constitution. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an election Tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case: see ONITIRI V. BENSON (1960) SCNLR 314 at 317.
It is plain that the proceedings are special for which special proceedings are mode under the Constitution. See Oyekan V. Akinjide (1965) NMLR 381 at 383. Election petitions are distinct from the ordinary civil proceedings. See Obih V. Mbakwe (1984) 1 SCNLR 192. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in an ordinary case could result in fatal consequences to the petition.
At what stage do pleadings close? Paragraph 18(1) gives two stages at which pleadings may close. Ordinarily, pleadings close after the filing and service of the Petitioner’s reply.
The request for the issuance of a Pre-hearing notice formally signals the close of pleadings. Therefore, once a request is made for the issuance of a Pre-hearing notice, pleadings are deemed closed even if no Petitioner’s reply is filed. If the Petitioner is still within time and elects to file a Petitioner’s Reply, the 1st request for the issuance of a Prehearing Notice must be withdrawn and a new request mode after the filing of the Petitioner’s Reply when time now starts to run up to seven days. Failure to withdraw the 1st Application and file a new one could be fatal to the petition due to exfluxion of time which the Tribunal cannot enlarge. There is a two way sharp sword built in here: if the Pre-hearing notice is filed pre-maturely, it is incompetent (Refer: AZUDIBIA V INEC (2008) 4 LRECN p105). If the Petitioner is within time i.e. within the seven days period of the filing of a reply, the procedural defect could be rectified as Stated above. However, if the time has lapsed, then the petition must be deemed abandoned and dismissed because the Tribunal lacks the power to extend the time within which to apply for the issuance of Pre-Hearing Notice. It sounds harsh, but that is the law. Under paragraph 16(1) the petitioner has five days to file a petitioner’s reply. There is no discretion reposed in the Tribunal to extend his time.
No doubt, the jurisdiction of the election Tribunal is derived from Section 285 of the 1999 Constitution of the Federal Republic of Nigeria as amended and the Electoral Act of 2010 as amended.
The 2010 Electoral Act as amended puts some necessary time constraints on Litigants. While the time prescribed must not be compromised, the learned members of the Tribunal must be liberal in the exercise of discretion provided to ameliorate the time constraints. All provisions which have the effect of shutting out a party must be applied strictly within the constitutionally guaranteed right to fair hearing. Thus, where a provision requires that an application should be made and such is made, the defects in the making of such an application should be discountenanced in favour of the principles of fair hearing, similarly, where a provision is made for the setting aside of a decision, the Party must be given the privilege of such a provision. Ordinarily, provisions made to terminate proceedings in limine are meant to put reluctant Litigants on red alert, and such should be used sparingly. The only exception is the mandatory provision as to the time line of the different stages of the prosecution of a petition.
However, the blanket view of the learned members of the Tribunal that the provision of a rule of practice like paragraph 18(1) of the First Schedule cannot operate to curtail the power of the Tribunal to do substantial Justice rather than technical justice is misconceived. There is no general rule for the Tribunal to intervene in favour of substantial justice where the procedural rule is mandatory. Every provision of subparagraphs 18 are unique, sui generis and same are mandatory. In the case of ONITIRI V. BENSON (1960) SCNLR 314 at 317, it was held that the jurisdiction of an Election Tribunal is different from that of on ordinary civil case. Thus, for instance, unlike with the giving of eight days for the entry of appearance to a writ of summons, which is not mandatory, the requirement to apply for a pre-trial notice within 7 days of the close of pleadings is a mandatory provision of the 1st schedule to the Electoral Act (see MR. G.O. DUKE V AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR Pt 959 P130 (a) 151).
None compliance is fatal and the tribunal/court is circumscribed to do anything other than what paragraph 18(3) and (4) of the 1st schedule says. Due to the special nature of Election proceedings, any default in complying with a mandatory procedural step which otherwise could either be cured or waived in an ordinary civil procedure would have fatal consequences in Electoral proceedings (Refer:
1. OYEKAN N. AKINJIDE (1965) NWLR p381 (a) 383
2. OBIH V. MBAKWE (1984) 1 SC NLR 192 and
3. OKEREKE V. YAR’ADUA (2008 FWLR Pt 430 p 626 at 646
Paragraph 18 and all its sub paragraphs are a class of special provisions which are complete in form. There is no room for the importation of any general rule. Where the tribunal/court has powers of indulging the parties, it is so stated. Where such discretion does not exist it is so stated.
In the case of KRAUS THOMPSON ORGANIZATION V. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (NIPSS) (2004) 17 NWLR pt 901 p44 (a) 59 and 65, the Supreme Court held that where an issue in a statute is governed by general provision and a specific provision, the later will be invoked in the interpretation of the issue before the court. Thus, while the learned Judges are enjoined to be liberal in the exercise of their discretion to ensure that the principles of fair hearing are upheld in all procedural matters, they must give effect to all mandatory provisions of the Electoral Act and procedural laws and rules of practice. The learned Judges must bear in mind that the special provisions of the Electoral Act do not admit of the exercise of wide discretionary powers as in ordinary civil proceedings. Thus, the case of FGN & ORS. V. ZEGBRA which is on a contractual matter is not applicable in election matters.
Paragraph 18(1) has, underlying its seemingly plain, unambiguous and ordinary provisions, some mandatory interjection which takes away the discretion of the tribunal or Court. Herein lies the sui generis status of election proceedings. A typical example is the failure of the parties to request for the issuance of a pre-hearing Notice; paragraph 18(4) provides for the outright dismissal of the Petition by the tribunal and such dismissal is irrevocable, it cannot be set aside. It is unlike under paragraph 18(11)(a) (b) where on order dismissing the petition or entering Judgment against the Respondent may be set aside within 7 days of the Judgment. Again the time to apply to set aside cannot however be extended. Why did the Legislators not allow the Tribunal or Court to exercise discretion in upholding the principles of fair hearing to extend the time within which to apply to set aside the Judgment? The reason is because election matters are cost within a time line which must be observed in order to give meaning to the democratic experience of governance without unnecessarily prolonging litigation.
The learned members of the Tribunal lack the jurisdiction to extend the time within which the pre-hearing notice shall be issued. It is a time line mandatory provision non compliance with which is fatal to the petition.
Here, the Tribunal has no option and such dismissal is final rendering the Tribunal/Court functus officio.
I have taken the extra mile to address the nature of discretionary powers of the Tribunal in the light of the pronouncement of the learned Judges of Tribunal that-
…where strict adherence or compliance with these practice or Rules will lead to injustice, a court of justice is admonished to circumvent or jettison them for the attainment of justice…”
Not in all cases and particularly not so with mandatory procedural provisions in election matters.
The appeal is dismissed and I adopt the orders made in the lead Judgment as mine.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the lead judgment just delivered by my learned brother, I.M.M. Saulawa, JCA.
I agree entirely with my Lord that this Appeal is unmeritorious and should be dismissed in its entirety.

ADAMU JAURA, J.C.A.: I have read before now the lead Judgment just delivered by my learned bother I.M.M. Saulawa, JCA. I am in agreement with the reasoning and conclusion reached therein, to the effect that the appeal is devoid of any merit and ought to be dismissed.
The narrow compass, within which this appeal oscillates, is on the interpretation of paragraph 18(1) (2) and (3) of the first schedule to the Electoral Act 2010 (as amended). The relevant provisions cited in the preceding sentence relate to the application for the commencement of pre-hearing session and issuance of pre-hearing notice Form TF 007 and pre-hearing information sheet Form TF 008. The 1st Respondent herein applied for the issuance of pre-hearing notice by a letter filed on the 1st June, 2011. The bone of contention therefore is whether such an application can be made by letter or as only restricted to be made by motion, particularly in view of paragraph 47 of the same schedule to the Electoral Act 2010 (as amended).
The relevant sub-paragraphs of paragraph 18 of the first schedule to the Electoral Act 2010 (as amended) are hereby reproduced:
“18(1) within 7 days after the filing and service of the petitioner’s reply on the respondent or 7 days after the filing and service of the respondent’s reply, whichever is the case, the petitioner shall apply for the issuance of pre-hearing notice as in Form TF007.
(2) Upon application by a petitioner under sub – paragraph (1) of this paragraph, the tribunal or court shall issue to the parties or their Legal Practitioners (if any) a pre – hearing conference notice as in Form TF 007 accompanied by a pre-hearing information sheet as in Form TF 008 for:
a…
b…
c…
d…
(3) The respondent may bring the application in accordance with subparagraph (1) where the petitioner fails to do so or by motion which shall be served on the petitioner and returnable in 3 clear days, apply for an order to dismiss the petition.”
Paragraph 18(1) of the first schedule to the Act, clearly places a mandatory duty on the petitioner to apply for the issuance of pre-hearing notice. By paragraph 18(3) of the same schedule, the respondent may also bring an application for the issuance of pre-hearing notice. It should be noted that the issuance of pre-hearing notice is the beginning of the procedure towards the commencement of pre-hearing conference. Paragraph 18(3) goes on to provide that in the event of failure to apply for the issuance of the pre-hearing notice, the respondent may apply by motion served on the petitioner for the dismissal of the petition. The legislature in paragraph 18(3) made a distinction between an ‘application’ and a ‘motion’. The Legislature it appears envisages two types of applications, the first is an application for issuance of Pre hearing notice, which can be in any form. The second is an application to dismiss the petition which has to be by formal motion on notice.
An application for the issuance of a pre-hearing notice is very unique, in the sense that it is made before the commencement of pre-hearing session. In view of the fact that the law has placed a mandatory duty on the petitioner to apply for pre-hearing notice, leave is not necessary for making the application as envisaged by paragraph 47(1) of the First Schedule to the Act, notwithstanding the fact that it is made before the pre-hearing conference. The application for pre-hearing notice kick starts the procedure of pre-hearing conference hence the application can be made by letter or motion, either ex parte or on notice.
In view of the above and the fuller reasons contained in the lead Judgment, the appeal is lacking in both merit and substance. It is hereby dismissed by me. The ruling of the Tribunal delivered on 23rd June, 2011 is hereby affirmed. There will be no order as to costs.

OBANDE OGBUINYA, J.C.A.: I had the privilege of reading, in draft, the leading judgment delivered by my learned brother, I.M.M. Saulawa, JCA. I am in complete agreement with his reasons and conclusions – that the appeal is bereft of merit. The facts, the issues and the arguments in this appeal have been adequately captured in the leading judgment. It will, therefore, be pointless to recapitulate them. I will only emphasise some points to solidify the leading judgment.
It was part of the appellant’s cardinal grievances on issue two that the document, a letter, sought to be impugned, was backdated by the first and second respondents. The learned counsel for the appellant made a heavy weather of that grouse and urged the court to allow the appeal on the strength of that tangential point.
The letter, being castigated, is contained on page 310 of the printed record. I have given a microscopic examination to the contents of that letter. It is a one-page document, written by the learned counsel for the appellant, G. Ofodile Okafor, SAN, containing the title of the petition.
On the top left side of the document, there is an oval-shaped stamp of the Election Petition Tribunal, Bauchi State embossed thereon. The date inscribed in that egg-shaped stamp is 1/6/2011, apparently by the Secretary of the tribunal designated therein. At the tail end of the document, there is another stamp, rectangular in form, hosting the following words: “ELECTION PETITION TRIBUNAL PAID DATE 1/6/11”. Apart from the same date, 01/06/2011, encapsulated in the two stamps of the lower tribunal, there is no other date. In other words, there is no tinge of evidence of a different date on the face of the letter.
Since there is obvious void of any other different date, save 01/06/2011 mentioned, I do not have the licence of the law to infer that the document was backdated as strenuously canvassed by the appellant, via his learned counsel. By law, both the parties, inclusive of the appellant, herein and this court are willy-nilly bound by the record regarding the document as contained on page 310 therein. Neither the appellant nor this court has the mandate of the law to go outside the records and nose around for a document signifying that the letter was backdated. This time-honoured principle of law has been sanctified in flood of cases, see Ogidi v. State (2005) 5 NWLR (pt.918) 286; O.O. M.F. Ltd. v. N.A.C.B. Ltd. (2003) 12 NWLR (pt. 1098) 412; Ekpemupolo v. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. v. Onwuka (2009) 8 NWLR (pt. 1144) 462; Sapo v. Sunmonu (2010) 11 NWLR (Pt. 1205) 374. It is in recognition of that hallowed rule of law that Tobi, JSC, in the case of Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207, lucidly stated:-
“… An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not.”
In due obeisance to this sacrosanct principle of law, I decline the tempting invitation of the appellant on this critical point. On this premise, I am minded to resolve issue two against the appellant.
On issue three, the appellant’s main complaint was that the lower tribunal was wrong in not following and applying the binding decisions in the cases of Riruwai v. Shekarau (2003) 12 NWLR (Pt. 1100) 142; Ayuba v. INEC (Unreported) Appeal No. CA/EP/K/15/2007 and Okereke v. Yar’Adua (2003) 12 NWLR (Pt. 1100) 95. Learned Counsel for the appellant made a meal of this issue as the appellant’s brief of argument was dotted with it.
Incontestably, the lower tribunal was bound to follow the decisions in the trio cases supra, being decisions of the Court of Appeal and Supreme Court, on the footing of stare decisis, see Ogunsola v. Nicon (2010) 13 NWLR (Pt. 1211) 225. Be that as it may, there is an accepted rider to the application of stare decisis. It is only applicable where the facts and circumstances of a case under consideration are on all fours with those of an already decided case by a superior court. In this wise, the knotty question, begging for an answer, is: are the facts of this case similar to those of the three cases for the application of stare decisis? I have my doubts. To begin with, in the case of Riruwai v. Shekarau (supra), the appellants/petitioners did not apply for issuance of prehearing notice as decreed by paragraph 3(1) of the Election Tribunal and Court Practice Directions, 2007, as amended, which is in pari material with the provision of paragraph 18(1) of the First Schedule to the Electoral Act, 2010, as amended. A similar scenario played out in the ease of Okereke v. Yar’Adua (supra). Put simply, in the two reported cases, the appellants made no application for issuance of pre-hearing notice, either in the form of a motion or a letter, to the trial tribunal. Contrariwise, in the case in hand, the first and second respondents, via their learned Counsel, placed an application before the lower tribunal. Thus, it is crystal clear that the facts and circumstances of those cases are in sharp contrast with those of the instant case. In a common legal parlance, they are distinguishable. On this score, I hold the humble view that those two decisions, rightly decided on their own merits, are, on the basis of facts differentials, de jure, inapplicable to this case.
It must be placed on record that facts are the forerunners and bedrock of the law. They determine the fortune of any case. In the case of A.G., Anambra v. A.G., Federation (2005) 131 LRCN 2357 at 2426, Pats-Acholonu, JSC, said:-
“Facts act like magnets and have the potential to completely turn a seemingly ugly or bad case to a good case. We must not neglect the Roman aphorism “Ex facto oritur jus’ that law has its offspring on the fact’.”
See also Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 363.
At any rate, the lower tribunal’s failure to apply those dissimilar authorities does not constitute an affront to the law. In the eyes of the law, such a failure or neglect occasions no miscarriage of justice to the appellant. To bear me out, I drum up support from the case of Ebhodaghe V. Okoye (2004) 18 NWLR (Pt. 905) 412 at 491 wherein Kalgo, JSC, stated:-
“Having resolved issue 1 in favour of the appellant, I do not find it necessary to consider issue 2 which deals with failure of the Court of Appeal to act on the legal authority cited to it and relied upon by the appellant in his submissions to it before judgment. It appears to me to be an academic exercise, since in any case, it would not affect the decision in this case on a way or the order. Suffice it however to say, that failure to consider any relevant authority by a court would not ipso facto, constitute any miscarriage of justice, in my view, since the situation may be corrected if necessary, on appeal.”
See, also, Okochi V. Animkwoi (2003) 18 NWLR (Pt. 851) 1 at 26.
In the light of the foregoing reasons, I am of the considered view that the dazzling submissions of the learned counsel for the appellant, on this issue, fly in the face of the law. To this end, I will not hesitate to resolve this issue (three) against the appellant.
Having regard to the reasons, coupled with more detailed reasons advanced in the leading judgment, I hold that the appeal is devoid of any merit. I dismiss it. I abide by the orders made in the leading judgment.